Pal v Minister for Immigration & Multicultural Affairs

[2000] FCA 1184

FEDERAL COURT OF AUSTRALIA

Pal v Minister for Immigration & Multicultural Affairs [2000] FCA 1184

YASH PAL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

S 12 OF 2000

MANSFIELD J
31 JULY 2000
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 12 OF 2000

BETWEEN:	YASH PAL APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MANSFIELD J
DATE:	31 JULY 2000
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) given on 11 February 2000.  The Tribunal affirmed the decision of a delegate of the respondent not to grant to the applicant, and to his wife and children, a protection visa under the Migration Act 1958 (Cth) (“the Act”). It is plain that, to qualify for that visa, the delegate of the respondent and, on review, the Tribunal had to be satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (using those terms as defined in the Act) (“the Convention”). In practical terms, that meant that the applicant had to fall within the definition of “refugee” in Article 1A(2) of the Convention, namely any person who

   “… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence … is unable, or owing to such fear, is unwilling to return to it.”

2. No separate case was presented that Rita Kumari, the wife of the applicant, or their children Simona, Yash and Amarpel Singh separately had claims to be refugees as defined in the Convention. Their claims stood or fell with the claim of the applicant, as they sought the visa simply because they were members of his family unit.

3. The applicant was born in the Punjab in India on 4 April 1959.  He is an Indian citizen.  He completed ten years of secondary eduction and then between 1974 and 1992 worked either as an agricultural secretary or in sales, at least for part of the time.  He claimed also to have been an active secretary of a local branch of the Shiv Sena political party, a party which supports or promotes the interests of Hindus in India, including in the Punjab.

4. In January 1993 the applicant and his family moved to Italy to work on a work permit.  He left India on a passport in his own name and in the normal manner.  His evidence was that he then remained in Italy for much of the period until he arrived in Australia.  He arrived in Australia on a tourist visa on 18 February 1997, having procured that visa in December 1996.  In the meantime he had visited the United States and Holland for brief periods during 1995.  It also emerged in the course of his evidence to the Tribunal that he had returned to India for a period of a month or two in the early part of 1996 and again in the early part of 1997.

5. The applicant’s claim was that he feared persecution because of his political beliefs.  He said that he had joined the Shiv Sena party in or before 1988.  At one point he said it was in 1988 but later, in his evidence to the Tribunal, he said he had been a member of Shiv Sena before that time.  He was the secretary of the local unit in his town of Qadian between 1988 and 1993.  He claimed to have been involved, in that capacity, in organising peaceful demonstrations and marches against Sikhs or, more accurately, against the treatment that Hindus in the Punjab were receiving from Sikhs, and also to have been involved in fundraising activities to help Hindus who had been injured or widowed by Sikh activists.  He claimed also to have left India in 1993 because he feared Sikh activists and he did not think that the Indian authorities could protect him.  He asserted in his claims to the Tribunal that, whilst he was in India, he had been attacked by Sikh extremists in 1989 or thereabouts and had fortunately avoided serious injury.  He also claimed that in 1993 his brother-in-law had been kidnapped by Sikh extremists and that those extremists were also looking for him.

6. The applicant therefore presented a claim as a prominent member of the Shiv Sena party who was or was likely to be on a Sikh extremists’ “hit list”, and that he still feared that, if he were to return to India, Sikh activists would lay or cause false charges to be laid against him or to kill him.  Before the Tribunal he also claimed that he feared Sikh militants, now backed by leaders of the Akali government in the Punjab, would be able to severely injure him or damage him or kill him if he were to return to India.  He claimed also to be unable to relocate to any other part of India.

7. Having recited the applicant’s claims in considerable detail, as they had been presented both in his initial application and submissions to the Department, in an interview with an officer of the Department and in written submissions to the Tribunal and in his oral evidence to the Tribunal, the Tribunal then addressed its findings and reasons for those findings.

8. It found that the applicant had given inconsistent evidence in a number of respects and that he had embellished his evidence over the passage of time, in part in the light of the reasons for decision of the delegate of the respondent rejecting his claim.  Ultimately the Tribunal said:

   “Based on the above evidence and for all of the above reasons, the Tribunal finds that there are numerous inconsistencies and contradictions in the applicant’s evidence and that he has attempted to progressively embellish and enlarge his claims.  Based on its findings above, the Tribunal finds that the applicant is not a credible witness.”

9. In the course of reaching that conclusion, the Tribunal dealt with each of the claims which the applicant made.  It rejected his claim that in 1989 or perhaps 1988 he and others had been attacked by Sikh extremists.  It identified inconsistencies in the evidence that he had given from time to time in relation to that incident, and its concerns about the timing at which that evidence had emerged.  It also observed that he had been able to live in his local town until he left for Italy in January 1993.  It therefore concluded that the applicant was not in fear of his life during that period, and it did not accept that the alleged incident had occurred at all.

10. The Tribunal also addressed the applicant’s claim that he was a paid secretary of his local Shiv Sena branch, working for the good of Hindus, during the period 1988 to 1933.  Again it referred to contradictions in his evidence about those activities, together with his lack of knowledge (in the Tribunal’s view) of matters which he could reasonably have been expected to have known about Shiv Sena.  It found that his claims were not plausible.  It noted that, despite his assertion that he was on a “hit list” of Sikh militants, he had been able to continue to work and reside in the normal manner in his local town until he left for Italy.  It therefore did not accept that he took part in demonstrations on behalf of Shiv Sena and it did not accept that he came to the notice of Sikh militants by reason of that activity.

11. The Tribunal also addressed claims made only belatedly by the applicant that his house in the Punjab had been raided many times to kill him, a claim which was not repeated at the hearing.  The Tribunal rejected that claim also, because it was not made in a timely fashion.  It pointed out that, if those events had occurred, they could not realistically have been overlooked.  It pointed out that they are inconsistent with the applicant’s ability to have continued to work and live in his home village until he left for Italy on a work permit.  It therefore found that that claim was not credible.

12. The applicant also said to the Tribunal that he had returned to India in January 1996 and had then been appointed a general secretary of a unit of Shiv Sena.  In support of that claim, he presented to the Tribunal a document described as a Shiv Sena ID card and an “Order Letter” appointing him to the office of secretary of the Gurdaspur unit of Shiv Sena between 1996 and 1998.  The Tribunal made observations about the contents of those documents, pointing to the Tribunal’s view that they were not genuine documents.  It did not accept that the applicant was appointed as a general secretary of the Shiv Sena party after he left for Italy in 1993.  It regarded his explanation for not having mentioned that appointment prior to the application for review to the Tribunal as implausible, and the fact of that appointment as too significant to have been overlooked in his claims to the Department or to the delegate of the respondent.  It therefore did not place any weight on the two documents referred to.  It positively did not accept, having regard to the whole of the evidence, that the applicant was a member of office-bearer of Shiv Sena.  It did not accept that he was a Shiv Sena activist, and it found positively that he did not face a real chance of persecution on the basis of his political opinion from his alleged affiliation with Shiv Sena at the time of the hearing or in the foreseeable future if he were to return to India.

13. There were some additional factors which the Tribunal later mentioned in support of that overall conclusion.  They included his ability to have returned to India for periods of one to two months in early 1996 and 1997, and the fact that he had done so; the fact that, having procured a visa to come to Australia, he had not come to Australia for some six to eight weeks after that visa was granted although he said that he feared Sikh militants attacking him and his family whilst in Italy; and the delay of some three months after he arrived in Australia on a tourist visa before he applied for the visa.

14. The Tribunal also had regard to extensive country information, to which it referred in some detail, about the state of affairs in the Punjab, at least in recent years. In the course of those observations the Tribunal also positively rejected the applicant’s claim that Sikh militants had attacked his house in Italy whilst he was there. He gave evidence of his house having been ransacked in August 1996, but the Tribunal concluded that that was simply a common larceny by unknown thieves and unrelated to Sikh activists. It pointed out that, in his report to the police at the time, he did not accuse any Sikh activists of having been involved in the theft, and its view was that there was nothing in the report to the police of that theft to connect it in any way to the applicant’s claim for a protection visa. It also rejected his claim that the new Akali Dal government provided yet a further reason for Sikh activists to be able now to persecute him were he to return to India. It regarded that claim as fanciful, particularly in the light of the country information to which it referred. Consequently, as I have noted, the Tribunal reached the view that the applicant did not have a well-founded fear of persecution for a Convention reason on the basis of his political opinion or his alleged affiliation with the Shiv Sena political party.

15. Having reached that view, it was probably unnecessary for the Tribunal also to address the question of relocation.  However, the Tribunal did so.  It found that, even if the applicant had a fear of persecution if he were to return to Punjab, it was not unreasonable for him to relocate elsewhere within India.  In reaching that decision, the Tribunal, in my judgment correctly applied the relocation test as enunciated in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 442 in the following terms:

    “… the delegate correctly went on to ask not merely whether the appellant could relocate to another area of India but whether he could reasonably be expected to do so.

    This further question is an important one because notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person’s fear of persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person.  In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered.”

16. I do not consider that the Tribunal’s decision in relation to relocation provides a separate and independent reason for the Tribunal’s decision.  That is simply because it was part of the Tribunal’s process of reasoning in relation to relocation that the applicant did not have a profile as an activist and was of no interest to the police.  If the conclusion of the Tribunal generally in relation to his claim to be a refugee based upon that finding were to be sustained, then the decision as to relocation follows in the absence of further error on that topic.  If the primary ground of attack upon the Tribunal’s decision is made out, in my view the decision on relocation would then be similarly infected because it is based upon that same underlying fact.  Upon the basis of that finding, and for other reasons which it expressed, the Tribunal was satisfied that it was not unreasonable for the applicant to relocate to another part of India.  It had regard to his ability to have returned to India from time to time and to re-enter India legally; to his ability to have spent time in Delhi, as he said he had done, without adverse attention from the authorities; to the extent to which persons of the Hindu religion represent the Indian population; to the number of Indian states where Hindu parties are in power; to the applicant’s demonstrated ability to settle away from the Punjab as he had done both in Italy and Australia; to the fact that Hindi, a language in which he is fluent, is widely spoken in parts of India; to his ability to obtain employment both in Italy whilst he was in Italy and in Australia since he has been in Australia; and generally to his apparent ability to adapt to a new country and new circumstances, consistent with his education.  All of those factors are factors which, in my view, the Tribunal properly was entitled to have regard to in reaching its conclusion.

17. I turn then to consider the particular ground of review which was argued. It was that the Tribunal based its decision or made a decision upon a matter upon which there was no evidence or other material to justify the making of the decision, contrary to s 476(1)(g) of the Act. Section 476(1)(g) is explained by s 476(4), relevantly s 476(4)(b). It provides that the ground specified in s 476(1)(g) is not to be taken to have been made out unless the person who made the decision based the decision on the existence of a particular fact and that fact did not exist.

18. In Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 Black CJ (with whom Spender and Gummow JJ agreed) at 220-221 and later at 223 explained those concepts in the following terms:

    “If the existence of a particular fact is seen to be critical to the making of a decision then the decision will be based on the existence of that particular fact.  In Bond’s case (supra) Mason CJ said (at 357) that s 5(3)(b) was directed to “proof of the non-existence of a fact critical to the making of the decision” [my emphasis].  See also Luu v Renevier (1989) 91 ALR 39 at 47 where a Full Court of this Court (Davies, Wilcox and Pincus JJ) used the word “critical” to distinguish unsupported findings of fact that go to the validity of a decision from findings relating only to a matter of peripheral importance that may not affect the validity of a decision.

    Section 5(3)(b) does not require the identification of some single particular fact that may be said to be the foundation of the decision.  A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision.  A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance.  A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion.

    If a decision is in truth based, in the sense I have described, on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed whatever the relative importance of the fact.

    …

    … Parliament … required the applicant for review to show more than that there was no evidence before the decision-maker of the fact found, or assumed, as the basis of the decision.  The applicant was required to negative the fact and, as his Honour noted, this may constitute a heavy burden, especially where the facts are obscure.”

19. The particular facts which it is contended did not exist but upon which the decision was based are threefold.  Firstly, it is said that the finding of the Tribunal that the applicant was not in fear of his life during the period 1988 to 1993 was a particular fact upon which the decision was based and that that fact did not exist.  I accept that that was a particular fact upon which the decision was based.  It was a critical step in the Tribunal’s reasoning.  However, I do not consider that the applicant has shown that that particular fact did not exist.  I have referred above to the matters to which the Tribunal had regard in reaching that conclusion.  They related principally to the Tribunal’s assessment of the reliability of the applicant as a witness.  As I noted, it did not accept the applicant as a reliable witness because of inconsistencies and contradictions in his evidence.  It pointed out those contradictions in relation to that particular finding at some length in its reasons.  I will not repeat those reasons, save to indicate that the applicant did not contend that any particular inconsistency or inconsistencies to which the Tribunal drew attention were not in fact inconsistencies.  The Tribunal regarded the claims made of his activities between 1988 and 1993 and of the attack in 1989 or 1988 as not plausible.  It also had regard to his ability to have continued to work and reside in his town until he left for Italy.  In my judgment, those matters are matters to which the Tribunal was entitled to have regard to in reaching that finding of fact.  The applicant has not otherwise sought to show that any particular step in the Tribunal’s reasoning to reach that conclusion was not based on a particular fact which did not exist.  In my judgment, the conclusion which is now attacked is a conclusion which the Tribunal was entitled to make.  A fortiori, I am therefore not persuaded that the particular fact that the applicant was not in fear of his life during the period 1988 to 1993 was a particular fact which is shown not to have existed.

20. The second particular fact about which the applicant made submissions was that the Tribunal failed to accept that the applicant took part in demonstrations on behalf of Shiv Sena or that he came to the notice of Sikh militants for that reason.  It is put that there was no evidence to justify the making of the finding that the applicant did not take part in demonstrations on behalf of Shiv Sena or that he did not come to the notice of Sikh militants.  The argument expressed that way may not be sufficient to establish the ground of review contended for.  As the remarks of the Chief Justice in Curragh show, the ground of review is only made out if it is shown that a particular fact did not exist.  However, there are further difficulties with the submission.

1. It should first be pointed out that the Tribunal’s reasons indicate that it did not make a positive finding about the applicant’s role in respect of the activities about which complaint is made.  It said that it did not accept his evidence in relation to those activities or that because of them he came to the notice of Sikh militants by reason of such activities.  I am not persuaded that the Tribunal positively made findings that he did not take part in demonstrations or did not come to the notice of Sikh militants in the way in which the applicant now asserts.  However, even if it did, in my judgment it is plain that the applicant has not shown that those particular facts did not exist.  That is, it has not been shown that the Tribunal’s finding that he did not take part in demonstrations on behalf of Shiv Sena did not exist, and it has not been shown that the Tribunal’s finding that he did not come to the notice of Sikh militants by reason of his role in taking part in such demonstrations did not exist.

2. Those two matters really represent conclusions made by the Tribunal having regard to a number of matters which it explained in its reasons.  Again, they are essentially related to inconsistencies in the applicant’s evidence, the timing of the making of certain claims in relation to his assertion that he was a refugee, the significance of his ability to reside and work and live in his local town until he left for Italy in January 1993, and his ability to return to India on two occasions from overseas.  The applicant has not sought to attack any of those particular matters which the Tribunal relied upon to reach the conclusions which are attacked, or to assert that those particular matters in any respect are particular matters which did not exist.  In my judgment they provide a foundation for the Tribunal’s conclusion.  It is not always necessary for there to be a positive foundation for a finding to resist a claim that a particular fact did not exist.  Sometimes the two concepts will necessarily run together.  For example if the particular fact were that the applicant had stated a fact to the Tribunal, the record would show whether there was a basis for the finding that the applicant had stated that fact; the foundation for or its non existence of that fact would be demonstrated at the same time.  However, where there is a clear foundation for a finding of fact, it is clear that it has not been shown that that fact did not exist.  In my judgment the applicant has shown that those particular matters did not exist.

3. The third finding which was attacked was a finding made by the Tribunal about the document which was called in the Tribunal’s reasons, and apparently in evidence, the “Order Letter”.  It was presented to the Tribunal as evidence of the applicant having been appointed as a general secretary of the Shiv Sena unit in Gurdaspur between 1996 and 1998.  The Tribunal made some observations about that document in the following terms:

   “The “Order Letter” purporting to make the above appointment has the date of the year changed by hand from one year to an earlier year.  The letter is written in very poor English.  Given that the applicant claimed no English, the Tribunal finds it is extremely odd that the appointment of the applicant is made in English.  None of the several lines of the letterhead have been translated although the delegate was very clear to the applicant that documents submitted should be translated.  The part of the letter following the word “Cordinature” appears to have been typed on a different machine from the top part of the letter and certainly with a much poorer quality ribbon.”

4. It is argued that the Tribunal’s finding that part of the letter appeared to have been typed on a different machine from the top part of the letter, and certainly with a much poorer quality ribbon, is a particular fact which did not exist. It is unnecessary for me to determine whether it is a particular fact in the sense in which that phrase is used in subss 476(1)(g) and (4)(b) of the Act. In my judgment it has not been shown that that fact did not exist. There is no evidence, other than the photocopy of the document itself, upon which I am asked to make that finding. If such a finding were to be made, it would in my judgment be necessary for there to be expert evidence adduced to establish the non-existence of that fact and, even then, probably incontrovertible or uncontested expert evidence. At present all I have is the assertion that the finding of the Tribunal which is attacked is a finding of fact which did not exist. The only way that I could reach that conclusion on the material before me would be if I were myself to conclude from examining that document that it was all typed on the same machine and with the same quality ribbon. I am not prepared to make that finding, and certainly not on the basis of a photocopy of the document. It is not for the Court, which is not expert in document analysis, to make any such finding. I am therefore simply not satisfied that the particular fact asserted did not exist.

5. Accordingly, in my judgment the grounds of review which have been argued on this application do not succeed.  The applicant also sought to contend that the Tribunal had misdirected itself in relation to its consideration of the relocation issue but, for the reasons which I expressed earlier, I do not think that attack is made out.  In my judgment this application should be dismissed.  I order that the applicant pay to the respondent costs of the application to be taxed.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:             23 August 2000

Counsel for the Applicant:	Mr M Clisby
Solicitor for the Applicant:	Mark Clisby
Counsel for the Respondent:	Ms S Maharaj
Solicitors for the Respondent:	Australian Government Solicitor
Date of Hearing:	31 July 2000
Date of Judgment:	31 July 2000